The Constitutional Court in Kampala has declined to outlaw the controversial anti-gay law.
The court in its judgment delivered by a panel of five justices ruled that the law, passed by Parliament last year to criminalise gay acts, does not infringe on most fundamental human rights.
“We decline to nullify the anti-homosexuality act 2023 in its entirety, neither will we grant a permanent injunction against its enforcement,” said Richard Buteera, lead judge, reading the judgment.
“Section 112(b) of the Anti-Homosexuality Act aligns with Section 31 of the Uganda Communications Act and Section 13 of the Anti-Pornography Act, all of which aim to uphold societal morals by limiting the use of media to publish or broadcast offensive material- Justice Richard Buteera added.
The judges also said the disqualification of homosexual convicts from employment in child care institutions under Section 12 and 13 of the Act is intended to protect children and vulnerable groups in society.
However, court ruled that some sections of the law violated the right to health, and that it was “inconsistent with right to health, privacy and freedom of religion”.
This means the Anti-homosexuality law, 2023, takes effect with its existing tough punishments including death by hanging once found culpable for aggravated homosexuality.
There were four anti-gay petitions of number 14, 15, 16 and 85 of 2023 that were filed before the court, however, along the way, they were consolidated into one.
The chambers of the Attorney General as the sole respondent, too have been served.
Deputy Chief Justice Richard Buteera led a panel of five justices; Geoffrey Kiryabwire, Muzamiru Kibeedi, Monica Mugenyi, and Christopher Gashirabake.
The argument that the petitioners fronted including MP Fox Odoi to have the controversial anti-gay law nullified by the court is that it alters the 2014 judgment of the same court that nullified a similar piece of legislation and therefore, inconsistent Article 92 of the Constitution.
Further, the petitioners argued that the Act was passed within six days instead of the 45-day period provided for the rules of Parliament.
Equally, they argued that Parliament enacted the said controversial law without meaning and adequate public participation, which they claim is inconsistent and in contravention with Articles 1, 2, 8A, 20, 36, 38, 79 and Objective 11 (1) of the National Objectives and Directive Principles of State Policy of the Constitution.
But the Attorney General who is the sole respondent in the four consolidated petitions, on the contrary, averred that the provisions for the anti-gay law are not inconsistent with or in contravention with the provisions of the Constitution, international treaties, covenants, and declarations.
The chief government legal adviser also in his defense of the enactment of the anti-gay law, saof the Act does not in any way alter the 2014 judgment of the Constitutional Court.
He reasons that the annulment of the then anti-gay was based on the lack of quorum in Parliament and did not go into the substance of the legislation.
The Attorney General also defended the gay legislation on grounds that Parliament passed it after the MPs conducting wide consultations with the public in form of written and oral memoranda.
About the law
The Anti- Homosexuality Act, 2023 prescribes tough penalties for various offences including participating in promotion, facilitation, and failure to report acts of homosexuality.
Penalties range from death for aggravated homosexuality to imprisonment not exceeding 20 years.
Ever since the assent to this piece of legislation by President Museveni mid-last year, there has been backlash from the Western world with some countries like America cutting aid to Uganda.
In June last year, President Museveni said that the anti-gay law that he assented to on May 26 last year, had been misinterpreted.
He clarified that the Anti-Homosexuality Act 2023 forbids recruitment by homosexuals of non-gay people into the practice of homosexuality, exhibitionism and promotion of sexual orientation, and performing homosexual sex on another person.
The President also dismissed claims that the law would inhibit medical care or access for homosexuals, who are likely to involuntarily go underground, as untrue because no provision prevents a health worker from treating any person.
Speaker of Parliament Anita Among said her attackers in the recent Parliament exhibition, an online campaign that was exposing corruption in the House, were homosexuals who were after her for saying no to practice in the country
Petitioners in petition number 14 were; MP Fox Odoi, Frank Mugisha, Pepe Onziema, Jackline Kemigisha, Andrew Mwenda, Kintu Nyango, Jane Nasiimbwa, and Kwizera Linda Mutesi. Vs AG
Petitioners in petition number 15 were Prof Sylvia Tamale, Andrew Mwenda, Dr Busingye Kabumba, Solome Nakaweesi, Kasha Jackline Nabagesera, Richard Smith Lusimbo, Eric Ndawura, Williams Apako and Human Rights Awareness and Promotion Forum VS AG
Those in petition number 16 are; Robert Rutaro, Musiime Alex Martin, Solomon Nabuyanda, and Lets Walk Uganda Ltd VS AG
The petitioner in petition number 85 is; Bishop James Lubega Banda VS AG.
